Text

Section 2. The transportation or importation
into any State, Territory, or possession of the United States for
delivery or use therein of intoxicating liquors, in violation of
the laws thereof, is hereby prohibited.

Section 3. This article shall be inoperative
unless it shall have been ratified as an amendment
to the Constitution by conventions in the several States, as
provided in the Constitution, within seven years from the date of
the submission hereof to the States by the Congress.

Background

The Eighteenth Amendment to the Constitution had ushered in a
period of time known as "Prohibition", during which the
manufacture, distribution, and sale of alcoholic beverages was
illegal. Passage of the Eighteenth Amendment in 1919 was the
crowning achievement of the temperance movement, but it soon
proved highly unpopular. Crime rates soared under Prohibition as
gangsters made millions of dollars on illegal alcohol sales, and
corruption was rife among law enforcement agencies[1]. In
1932, wealthy industrialist John D. Rockefeller stated in a
letter:

When Prohibition was introduced, I hoped that it would be widely
supported by public opinion and the day would soon come when the
evil effects of alcohol would be recognized. I have slowly and
reluctantly come to believe that this has not been the result.
Instead, drinking has generally increased; the speakeasy has replaced the saloon; a vast
army of lawbreakers has appeared; many of our best citizens have
openly ignored Prohibition; respect for the law has been greatly
lessened; and crime has increased to a level never seen before.[2]

As more and more Americans opposed the Eighteenth Amendment,
movement grew for repeal. However, repeal was complicated by grassrootspolitics. Although the US
Constitution provides two methods for ratifying constitutional
amendments, only one method had been used until then; that was for
ratification by the state legislatures of three-fourths of the
states. However, the wisdom of the day was that the state
legislators of many states were either beholden to or simply
fearful of the temperance lobby. For that reason, when Congress formally proposed the
repeal of Prohibition on February 20, 1933, (with the requisite
two-thirds having voted in favor in each house; 63 to 21 in the
Senate and 289 to 121 in the House) they chose the other
ratification method established by Article
V, that being via state conventions. To date, the
Twenty-first is the only amendment ratified by conventions held in
the several states, rather than being ratified by the state
legislatures. Edward Schoeneck (the Lt. Governor of New York
1915-1918 and Mayor of Syracuse, NY 1913-1915) also played an
important role in the ratification of the 21st amendment. The
Twenty-first Amendment is also one of only two operative provisions
of the Constitution that prohibit private conduct; the other is the
Thirteenth
Amendment. As Laurence Tribe points out: "there are
two ways, and only two ways, in which an ordinary private citizen
... can violate the United States Constitution. One is to enslave
someone, a suitably hellish act. The other is to bring a bottle of
beer, wine, or bourbon into a State in violation of its beverage
control lawsâ€”an act that might have been thought juvenile, and
perhaps even lawless, but unconstitutional?"[3]

Proposal and
ratification

The Congress proposed the Twenty-first Amendment on February 20,
1933.[4]

The proposed Amendment was fully ratified on December 5, 1933.
It is the only Amendment thus far ratified by stateconventions, specially selected for the
purpose, whereas all other amendments have been ratified by state
legislatures. It is
also the only amendment that was passed for the explicit and nearly
sole purpose of repealing an earlier amendment to the
Constitution. The 21st amendment ended national prohibition in
early December.

The following states ratified the amendment:

Michigan (April 10, 1933)

Wisconsin (April 25, 1933)

Rhode Island (May 8, 1933)

Wyoming (May 25, 1933)

New Jersey (June 1, 1933)

Delaware (June 24, 1933)

Indiana (June 26, 1933)

Massachusetts (June 26, 1933)

New York (June 27, 1933)

Illinois (July 10, 1933)

Iowa (July 10, 1933)

Connecticut (July 11, 1933)

New Hampshire (July 11, 1933)

California (July 24, 1933)

West Virginia (July 25, 1933)

Arkansas (August 1, 1933)

Oregon (August 7, 1933)

Alabama (August 8, 1933)

Tennessee (August 11, 1933)

Missouri (August 29, 1933)

Arizona (September 5, 1933)

Nevada (September 5, 1933)

Vermont (September 23, 1933)

Colorado (September 26, 1933)

Washington (October 3, 1933)

Minnesota (October 10, 1933)

Idaho (October 17, 1933)

Maryland (October 18, 1933)

Virginia (October 25, 1933)

New Mexico (November 2, 1933)

Florida (November 14, 1933)

Texas (November 24, 1933)

Kentucky (November 27, 1933)

Ohio (December 5, 1933)

Pennsylvania (December 5, 1933)

Utah (December 5, 1933)

Ratification was completed on December 5, 1933. The amendment
was subsequently ratified by the following states:

Maine (December 6, 1933)

Montana (August 6, 1934)

In addition, the following state rejected the amendment:

South Carolina (December 4, 1933)

Voters in the following state rejected a convention to consider
the amendment:

North Carolina (November 7, 1933)

The following states have not ratified the amendment:

Nebraska

Kansas

Mississippi

Oklahoma

Louisiana

North Dakota

South Dakota

Georgia

Implementation

State
and local control

The second section bans the importation of alcohol in violation
of state or territorial law. This has been interpreted to give
states essentially absolute control over alcoholic
beverages, and many U.S. states still remained "dry" (with state
prohibition of alcohol) long after its ratification. Mississippi was the
last, remaining dry until 1966;[5] Kansas
continued to prohibit public bars until 1987.[6] Many
states now delegate the authority over alcohol granted to them by
this Amendment to their municipalities or counties (or both), which has led to many lawsuits over First
Amendment rights when local governments have tried to revoke liquor
licenses.

Court
rulings

Section 2 has been the source of every Supreme Courtruling directly addressing
Twenty-first Amendment issues.

Early rulings suggested that Section 2 enabled states to
legislate with exceptionally broad constitutional powers. In
State Board of Equalization v. Young's Market Co.
(1936),[7] the
Supreme Court recognized that "Prior to the Twenty-first Amendment
it would obviously have been unconstitutional"[8] for a
state to require a license and fee to import beer anywhere within
its borders. First, the Court held that Section 2 abrogated the
right to import intoxicating liquors free of a direct burden on
interstate commerce, which otherwise would have been
unconstitutional under the Commerce Clause before passage of the
Twenty-first Amendment.[9] In its
second holding, the Court rejected an equal protection claim because
"A classification recognized by the Twenty-first Amendment cannot
be deemed forbidden by the Fourteenth."[10] Over
time, the Court has significantly curtailed this initial
interpretation.

In Craig v.
Boren (1976), the Supreme Court found that analysis under
the Equal Protection Clause of the
Fourteenth
Amendment had not been affected by the passage of the
Twenty-first Amendment. Although the Court did not specify whether
the Twenty-first Amendment could provide an exception to any other
constitutional protections outside of the Commerce
Clause, it acknowledged "the relevance of the Twenty-first
Amendment to other constitutional provisions becomes increasingly
doubtful."[11]
Likewise, it has been held that Section 2 of the Twenty-first
Amendment does not affect the Supremacy Clause[12] or
the Establishment
Clause.[13]
However, the Craig v. Boren Court did
distinguish two characteristics of state laws permitted by the
Amendment, which otherwise might have run afoul of the
Constitution. The constitutional issues in each centered or touched
upon:(1) "importation of intoxicants, a regulatory area
where the State's authority under the Twenty-first Amendment is
transparently clear;"[14] and
(2) "purely economic matters that traditionally merit only
the mildest review under the Fourteenth Amendment." [15] As to
the Dormant Commerce Clause in
particular, the Court clarified that, while not a pro
tanto repeal, the Twenty-First Amendment nonetheless
"primarily created an exception to the normal operation of the Commerce
Clause."[16]

In 44 Liquormart, Inc. v.
Rhode Island (1996) the Court held states cannot use the
Twenty-first Amendment to abridge freedom of speech protections
under the First Amendment.[23]Rhode Island imposed
a law that prohibited advertisements that disclosed the retail
prices of alcoholic beverages sold to the public. In declaring the
law unconstitutional, the Court reiterated that "although the
Twenty-first Amendment limits the effect of the Dormant Commerce Clause on a
State's regulatory power over the delivery or use of intoxicating
beverages within its borders, the Amendment does not license the
States to ignore their obligations under other provisions of the
Constitution."[24]

Most recently, however, Granholm v. Heald (2005), held
that the Twenty-first Amendment does not overrule the Dormant Commerce Clause with
respect to alcohol sales, and therefore states must treat in-state
and out-of-state wineries equally. The Court criticized its
earliest rulings on the issue, (including State Board of
Equalization v. Young's Market Co.) and promulgated its most
limited interpretation to date:

The aim of the Twenty-first Amendment was to allow States to
maintain an effective and uniform system for controlling liquor by
regulating its transportation, importation, and use. The Amendment
did not give States the authority to pass nonuniform laws in order
to discriminate against out-of-state goods, a privilege they had
not enjoyed at any earlier time.[25]

In a lengthy dissent, Justice Thomas argued that the plain
meaning of Section 2 removed "any doubt regarding its broad scope,
the Amendment simplified the language of the Webb-Kenyon Act and
made clear that States could regulate importation destined for
in-state delivery free of negative Commerce Clause
restraints."[26] In
his historical account, Justice Thomas argued the early
precedent provided by State Board of Equalization v. Young's
Market Co. was indeed correct, and furthered the original intent
of the Twenty-first Amendment to provide a constitutional guarantee
authorizing state regulation that might conflict with the Dormant Commerce Clause
(similar to the Webb-Kenyon Act of 1913; 27 U.S.C. Â§122).
Regardless of the narrow 5-4 majority, the ruling in Granholm v.
Heald will likely control Dormant Commerce Clause
analysis for the foreseeable future, given the unusual ideological
shift by some of the justices in that case. Although Justice
Stevens voted with the traditionally conservative wing of the
Court, Justices Kennedy and Scalia both voted with the traditionally
liberal wing of the Court.

^See 23 U.S.C. Â§
158(a)(1) (2009) ("The Secretary [of Transportation] shall
withhold 10 per centum of the amount required to be apportioned to
any State under [23 U.S.C. Â§ 104(b)(1)-(2), (5)-(6)] . . . in which
the purchase or public possession in such State of any alcoholic
beverage by a person who is less than twenty-one years of age is
lawful.").

^483 U.S. 203, 205
(1987); accordGriffin v. Sebek, 90 S.D. 692,
703-704 (1976) ("SDCL 35-6-27 provides: 'No licensee under this
chapter shall sell or give any low-point beer to any person who is
less than eighteen years old or to any person . . . who is
intoxicated at the time, or who is known to the seller to be an
habitual drunkard.'") (quoting S.D. Codified Laws Â§Â§ 35-6-27 &
35-4-78(2) (1975)) (Dunn, C.J., dissenting), overruled on other
grounds, Walz v. Hudson, 327 N.W.2d 120 (S.D. 1982),
superseded by statute, S.D. Codified Laws Â§ 35-4-78
(2009).

^483 U.S. 203, 212
(1987) ("[R]egulation of the minimum age of purchasers of
liquor falls squarely within the ambit of those powers reserved to
the States by the Twenty-first Amendment. Since States possess this
constitutional power, Congress cannot condition a federal grant in
a manner that abridges this right. The Amendment, itself, strikes
the proper balance between federal and state authority.") (Brennan,
J., dissenting) (alteration added) (citation omitted)